In the court of Additional Session Judge04, District Shahdara,
(Model/Pilot Project Court), Room No.51, Second Floor, Karkardooma
Courts, Delhi
CNR No. DL SH0163252018 date of institution : 20.09.2018
Crl. Appeal No.29/18 decision reserved on: 30.11.2018
I.D. No. 145/18 date of decision : 01.12.2018
In the matter of
Smt. Ritu wife of Late Manoj Kumar
presently residing at B2/376, Rajveer Colony,
Ghadoli, Delhi110096 …Appellant
Versus
1. The State (GNCT of Delhi)
2. Chander Pal son of Sh.Hukam Chand
resident of D202, Maujpur Chowk, Delhi
3. Sumit Kumar son of Sh. Chander Pal
resident of D202, Maujpur Chowk, Delhi110053 …Respondents
J U D G M E N T
[On appeal u/s 29 of the Protection of Women from Domestic Violence
Act. 2005 (briefly Act, 2005) arising from the order dated 30.07.2018
passed by Chhavi Kapoor, Ld. M.M. (Shahdara), Karkardooma Courts,
Delhi (in brief, the trial court) in CC No.V250/21.09.16 ‘Smt. Ritu Vs.
Chander Pal Anr.’].
1. (Background
) – The appellant/applicant filed an application u/s
12 of the Act, 2005 alongwith another application u/s 23 of the Act, 2005
Crl. Appeal No. 29/18 Ritu Vs. The State Ors. Page 1 of 6
(for interim reliefs) against her fatherinlaw Sh. Chander Pal and
brotherinlaw Sumit Kumar (respondent No.2 and 3 herein), since her
husband Manoj Kumar had expired in an accident on 21.11.2015. She
had claimed reliefs u/ss 18, 19, 20, 22 and 23 of the Act, 2005. In
application u/s 23 of the Act, 2005 for adinterim relief, she claimed
restrain order against them from alienating, mortgaging or disposing the
property No.D202, Maujpur, Delhi, claiming to be her matrimonial
house and her belongings are lying there or to direct them to secure
alternative accommodation to her and her children as they were
dispossessed illegally. It was contested by the respondents. However,
by order dated 30.07.2018, the trial court dismissed the application u/s
23 of the Act 2005 by observing all the facts and features, particularly
neither the date of marriage of appellant with Manoj Kumar nor that D
202, Maujpur, Delhi was her share hold house nor her belongings were
lying in the said property were mentioned in the applications. Moreover
no specific instances of domestic violence or of any harassment were
narrated in the applications. Considering all these aspects as well as
the dispute pertains to property disputes of civil nature, which are
pending the court of law; the trial court dismissed the application. The
appellant is feeling aggrieved by such order and present appeal is filed.
2.1 (Plea in appeal and submissions) – Succinctly, the appellant
assails the order that marriage of appellant with Manoj Kumar is not
disputed, children were born to them is also not disputed and she is
presently living at her parents house is also a fact, but it was because
she was deserted/thrown from her matrimonial home. Under these
circumstances, she requires accommodation for her and for her
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children, otherwise she will be shelterless. Even no interim
maintenance has been allowed in her favour and in favour of her
children. The trial court failed to appreciate all these aspects,
particularly it was an ancestral property, consequently the appellant has
right to reside in that property in which her husband had share, the trial
court order suffers from illegality and contrary to the law and facts. In
the body of appeal, appellant relies upon Vipul Lakhanpal Vs. Pooja
Sharma 2015 Crl. L.J. 3451 (HP) that it is fundamental principle, of
section 12 of the Act, is for amelioration of financial state of affairs as
well as mental agony that woman suffered; Geeta Kapoor Vs. State of
Haryana 2014 (1) RCR (Crl.) 942 that petition u/s 12 of the Act, 2005
may be filed independently even if case u/s 498A IPC is registered;
S.R. Batra Vs. Taruna Batra AIR 2007 SC 1118 that in case of share
hold property and property being joint family property, in which the
husband is member of that family, entitles the order in favour of wife. In
Roma Rajesh Tiwari Vs Rajesh Dinanah Tiwari (W.P. no. 10696/2017) it
was held in the proceedings between couple to marriage, that when
there shared hold house, the Family Court could not vacate the status
quo order.
It has been added that the compensation amount of Rs.5 lakh
was disbursed by the Motor Accident Claim Tribunal, Delhi, out of which
Rs.50,000/ came to respondent No.2, a sum of Rs.3 lakh came to two
children and Rs.1,50,000/ to the appellant. Since she was residing in
the property during the life time of Manoj Kumar as well as after his
death, she is entitled for residence order. (It was inquired by court
whether either of the respondents were maintaining or paying any
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maintenance to the appellant during the life time of Sh. Manoj Kumar,
the present respondents have any statutory obligation to pay
maintenance as claimed, it is clarified that no such maintenance was
ever since paid by the respondents, otherwise it may be possible under
the provision of Hindu Adoption and Maintenance Act). This is the
substance of appeal and submissions by Sh. Vinay Kumar alongwith
Sh. Pavitraveer Singh, Advocates for appellant.
2.2 (Plea of respondent No.2 and 3) – Whereas on the other side,
Ms. Rashmi, Advocate for respondent No.2 and 3 opposed the appeal
that the findings given by trial court do not suffer from any illegality vis
avis there is nothing perverse to set aside the said order. Moreover,
the impugned order dated 30.07.2018 is based on what was the
pleadings/applications and documentary record. The application was
filed in September, 2016, subsequent to complaint dated 08.08.2016 by
the respondents that they were being harassed by making claims in the
property as well as they were threatened of dire consequences, then as
a counterblast she filed the applications. So far compensation amount
is concerned, the respondent No.2 was awarded an amount of
Rs.50,000/ by Motor Accident Claim Tribunal, Delhi (out of total amount
of Rs.5 lakh) even that amount of respondent No.2 was given in fixed
deposit to the children of appellant. The respondent No.2 is an old aged
person and he is pensioner, suffering from ailments. He persuaded and
got regular widow pension of Rs. 2,500/ for the appellant. Moreover,
there are LIC policies obtained in the name of grand children of
respondent No.1 (children of appellant). The record of copies of LIC
policies, fixed deposit receipts and police report dated 08.08.2016 are
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placed on record to authenticate their plea (of respondent No.2 and 3)
and to oppose the appeal. However, all these vital aspects have been
concealed by the appellant from the trial court and from this appellate
court. There are many more litigation have been commenced by the
appellant and all of them are to claim rights in the property, whereas
she has no right in any of the properties. Lastly, the said property for
which interim relief is claimed, belongs to the respondent No.2, it is not
ancestral property nor appellate has any right therein. There is no right
in favour of appellant. The appeal is liable to be dismissed.
2.3 (Plea of respondent no.1/State) The respondent no.1 contended
that it is an application u/s 12 of Act 2005, the State was not a party in
the trial court because of private application, therefore, State was not
necessary to be impleaded nor any submission are to be made being
dispute of private persons.
3.1 (Findings with reasoning) – The rival contentions, which are
juxtaposition to each other, are considered and trial court record is also
per used besides the findings of the trial court.
3.2 By taking into account all the aspects, the appeal is dismissed for
the following reasons :
(i) the trial court order is a compact order containing all the aspects
of the case of the parties, there is nothing perverse to set aside the said
order;
(ii) it is settled law that pleadings have to contain material facts to
show cause of action and the oral submissions will not fulfill those
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aspects as it will not take place of the pleadings; the findings of trial
court as given, prima facie, are based on this principle,
(iii) in order to secure restrain order against an owner of the property
or to claim other rights therein, it was required to show prima facie
cause of action and there is nothing in the impugned order to treat
contrary to record of applications and
(iv) in Roma Rajesh Tiwari case (supra), the case was between
parties to the marriage before the Family Court, whereas in the present
case the respondents are fatherinlaw and brotherinlaw. In Padma
Sundara Rao other Vs State of Tamil Nadu other 2002 (3) SCC
533, it was held that ratio of a case is facts specific that is. ratio of case
has to be read as per the facts of a particular case and even change of
a single fact can make difference to the ratio of case.
Hence, this appeal is disposed off as dismissed. However, while
opining on the appeal, any observations recorded while adjudicating the
issues, it will not be construed any opinion on the merits of the case.
Announced in open court today
Saturday, Agrahayana 10, Saka 1940
(Inder Jeet Singh)
Additional Session Judge04
(Shahdara), KKD Courts, Delhi
01.12.2018
Digitally signed by
INDERJEET SINGH
INDERJEET Location: Shahdara
District, Karkardooma
SINGH Courts
Date: 2018.12.01 17:06:08
+0530
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